Sherry F. Colb

Avoiding Race Discrimination Between a Rock and a Hard Place: The U.S. Supreme Court Hears Argument in Ricci v. DeStefano


Wednesday, April 29, 2009

Last week, the U.S. Supreme Court heard argument in Ricci v. DeStefano. The case involves a group of firefighters and the New Haven, Connecticut Fire Department ("the Department"). It arose when the Department administered an examination to determine whom to promote to captain and lieutenant, after contracting with an organization that developed the exam. When the scores came back, the City discovered that none of the top three performers (all of whom would automatically be promoted if the test results were certified) was African-American. In addition, it found that the pass rate for African-Americans was approximately half that for whites, a disparity greater than that associated with other tests. After a hearing, the City's Exam Review Board decided not to certify the results of the employment test. As a result, no one was promoted.

White firefighters whose scores would have made them eligible for promotion then brought a lawsuit alleging that the City of New Haven had violated the Equal Protection Clause of the Fourteenth Amendment (as well as federal statutory law) by denying them their promotions on the basis of race. Their claims raise the provocative possibility that intentionally avoiding one form of race discrimination – disparate-impact discrimination – might itself constitute another form of race discrimination – disparate-treatment discrimination. In this column, I will consider some implications of embracing this paradox.

Federal Law and Affirmative Action

For purposes of this discussion, I will define "affirmative action" as the intentional advantaging, in employment, education or other competitive arenas, of one or more traditionally-disadvantaged groups, such as women or minorities. Critics of affirmative action have long argued that affirmative action represents a variant on race and sex discrimination and is accordingly no less objectionable. Stated differently, critics contend that race discrimination constitutes deliberately disparate treatment on the basis of race, and that the motive for such differential treatment (whether it is a belief in white supremacy or a commitment to rectifying historical injustices) is immaterial. If one takes this approach, then any decision to hire or promote a job candidate in part on the basis of her race is wrong and illegal.

The law, to an important degree, tracks this vision of race- and sex-neutrality that affirmative action critics espouse. Title VII of the 1964 Civil Rights Act, for example, prohibits discrimination "on the basis of race, color, religion, sex or national origin," rather than discrimination "against racial and religious minorities and women." It thus protects against the deployment of racial and other "classifications" rather than protecting specific disadvantaged "classes" of individuals against discrimination.

Similarly, the U.S. Supreme Court has construed the Equal Protection Clause of the Fourteenth Amendment to protect everyone from governmental discrimination on the basis of forbidden classifications (absent a compelling governmental interest). Accordingly, the Court has invalidated most official affirmative action measures directed at helping traditionally-disadvantaged minorities through set-asides and racial quotas. The Court has also ruled that when government action has the unintended effect of disadvantaging minority groups, such action does not amount to a violation of the Equal Protection Clause.

Federal law has not, however, proved to be unambiguously hostile to race-consciousness in the service of equality. Title VII, for example, specifically identifies as suspect an employer's conduct resulting in "disparate impact." That is, even in the absence of intentional discrimination, the use of a job measure that produces a racially- disproportionate outcome will require an employer to defend the measure and demonstrate that it is consistent with "business necessity."

Thus, in Ricci, the case now before the Court, had the test results been certified and promotions accordingly awarded exclusively to white firefighters, the City could have faced a lawsuit alleging "disparate impact" discrimination. To avoid engaging in this sort of discrimination and/or to prevent a disparate-impact discrimination suit, the Department did not certify the test results.

Though the Supreme Court has not recognized "disparate impact" as a violation of the Constitution, it has not been entirely unmoved by the arguments of affirmative action proponents. As recently as 2003, in Grutter v. Bollinger, for example, the Supreme Court upheld the University of Michigan Law School's affirmative action program, under which an applicant's minority status could count as a plus factor in her consideration, in the service of achieving diversity. Sometimes, in other words, integration of the races is an important enough goal, in the Court's eyes, to allow for modest forms of pro-minority "discrimination."

What, Exactly, Did the City of New Haven Fire Department Do?

To determine whether the Department violated the Equal Protection Clause or Title VII (including the portion of the federal statute that prohibits racially-based test-score manipulation), one must first characterize the nature of the Department's actions in administering and then scrapping the promotion-eligibility test.

One approach would be to say that the Fire Department was initially prepared to promote each of a group of three people based on performance on an exam but, upon discovering that everyone in the group was white, cancelled the promotions. If we look at the Department's actions in this way, an analogy comes to mind.

Imagine that a school decides to admit all students who achieve above a designated combined grade point average and S.A.T. score. Upon discovering that all of the qualifying students this year are East Asian in origin, however, the school decides to find a new test. Such action appears to constitute disparate-treatment discrimination and – if the school is a state institution – a violation of the Fourteenth Amendment Equal Protection Clause as well. But for the students' race or national origin, the school would have admitted the students whose combined grades and S.A.T. scores qualified them for admission. The school, in effect, thus took away something that belonged to the East Asian-American students because of their status as East Asian-American.

There is, of course, another way to characterize the Fire Department's actions. The Department likely had in mind a variety of objectives in selecting an instrument for allocating promotions. First, it wished to promote the most skilled employees, whose performance would be superior to that of the others. The test it gave represented an effective, but hardly perfect, instrument for such selection (as any instructor who has given and graded an exam knows all too well). Second, the Department hoped to avoid both the appearance and the reality of unfairness: By selecting its candidates for promotion by using a (union-mandated) uniform examination, the Department could ensure that its own biases would not put some firefighters at a disadvantage, relative to those who had flattered or otherwise ingratiated themselves with their superiors.

Because the test is more or less imperfect at achieving each of these objectives, the results could legitimately have led the Department to find fault with the instrument. If, for example, the Department had looked at the results and found that half of the people to be promoted had done a sub-standard job out in the field over the last few months, then the Department could understandably have decided to find a different test to determine the award of promotions. Similarly, if it had turned out that the test awarded all promotions to people with family relations in city government, that too would give the Department a reason to throw out the results and use a different measure. In each case, the test would seem to have been measuring something other than performance.

What actually happened, as noted above, was that none of the three people who would automatically be awarded promotions based on the exams was African-American, and the overall pass rate of African-American applicants was significantly lower than that of other applicants. Like the disconcerting hypothetical results I discussed above, this outcome too could have readily led the Department to conclude that the test was measuring something other than a candidate's future quality of performance. In this case, the test seemed to have been inadvertently measuring race.

Viewed from this perspective, the Department did not disadvantage the individual candidates who had performed well on the exam because they were white. Instead, it took the fact that not one African-American appeared among them (and the fact of the low pass rate of African-American candidates generally) as indicative of a flaw in the test. Rather than insisting on a "quota" of some number of African-Americans, in other words, the Department was simply reacting to the outcome of the test in the same way that many in the public might have reacted to it – as prima facie evidence of a flawed process.

Defending Affirmative Action More Vigorously

One could, of course, defend the Exam Review Board's decision to throw out the test results in much stronger terms. One could say, for example, that the history of race in this country requires that we bend over backwards to ensure that African-Americans are no longer excluded from the most sought-after positions in public life. One could say as well that to perform a public function effectively, any governmental department must be well-integrated and must accordingly avoid having a de facto color line in its ranks. One could, in other words, defend the practice of affirmative action, rather than simply deny that what the Department did in this case constitutes discrimination.

It is not, however, necessary to take a strongly supportive position on affirmative action to defend the Department's conduct in this case. Title VII explicitly deems neutral policies that have a disparate impact automatically suspect and requires an examination and justification if they are to be maintained. On these terms alone, the Department could have noticed the stark disparity in results, examined the test and alternatives to it, and found itself unconvinced, after a hearing, that "business necessity" truly required the disparity that the test produced.

If the Department were subsequently to utilize an alternative instrument and find again that all three of the people to be promoted were white, then it might eventually conclude that in this case, the white firefighters really were the most qualified. But one test does not necessarily offer that assurance. If engaging in this thought process violates the Equal Protection Clause, moreover, then the disparate-impact component of Title VII is itself necessarily unconstitutional as applied to public officials, because it virtually requires an employer to think along these lines.

On the Equal Protection claim, the Supreme Court did say in the 1976 case of Washington v. Davis that disparate impact does not itself represent a constitutional violation. Even there, however, the Court recognized that disparate impact can provide evidence of discrimination. When you walk into a private club located in the midst of a diverse community and see members of only one race or one sex, you might reasonably conclude that the homogeneity reflects something invidious in the selection process. You might or might not turn out to be correct, but either way, your conclusion, based on the evidence, could not fairly be characterized as discriminatory thinking.

When the Fire Department discovered that its test had yielded three white candidates for promotion, the Department was likely disappointed, because promoting only white firefighters would look discriminatory and – so far as the Department knew – might reflect hidden racial bias in the test itself. Furthermore, if confronted with a disparate-impact lawsuit, the Department might have been ill-equipped or even unwilling to argue that the particular test truly reflected "business necessity."

Expected Outcome

In sum, the Fire Department acted properly by taking the test's racially-disparate results into account. Nothing in the Equal Protection Clause of the Fourteenth Amendment (or federal laws prohibiting employment discrimination) precludes an employer's rejection of a test that yields racially-disparate results. Some of the Justices on the Supreme Court, however, have proven hostile to any departure from race neutrality. The survival of disparate impact – both as a cause of action against government entities for discrimination, and as an evidentiary basis for inferring disparate treatment – may thus rest on the Supreme Court's ability to appreciate the valuable role that skepticism can play in figuring out when apparently "neutral" conduct is in fact both invidious and unnecessary.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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